Canadian Employment Law Today

October 23, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian Employment Law Today | 7 More Cases Canadian HR Reporter, 2019 respect to these entitlements, the burden of proof will be on the employer to estab- lish that the worker was not an employee and these obligations do not apply. is amendment will have significant implica- tions on businesses now faced with the presumption that workers are employees. is presumption, coupled with a worker reducing hours elsewhere and taking on more work under an existing contract, will likely make it more probable that the work- er's independent contractor status would be subject to change. For more information see: • Malleau v. M.N.R., 2013 TCC 47 (T.C.C.). • Dynamex Canada Inc v. Mamona, 2003 FCA 248 (F.C.A.). • Robinow and Calian Ltd, Re (Aug. 20, 2017), Doc. YM2707-10847 (Can. Labour Code Adj.) • Glimhagen v. GWR Resources Inc., 2017 BCSC 761 (B.C. S.C.). • Shaham v. Airline Employee Travel Consulting Inc., 2018 NSSM 18 (N.S.Sm. Cl. Ct.). Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@ stewartmckelvey.com. nomination to be the federal Progressive Conservative Party candidate in Barrie, his managers bullied him, causing damage to his reputation and his professional career, in addition to severe emotional distress. is alleged harassment occurred over a seven- year period. e employee sued the RCMP and his superiors for harassment and inten- tional infliction of mental distress. Trial decision e Ontario Superior Court (ONSC) found that the employee had suffered from post- traumatic stress disorder and depression due to the RCMP's treatment of him. e ONSC also outlined a four-part test to es- tablish a claim for damages for harassment, which the ONSC ultimately determined the employee had satisfied in this case. In reaching this conclusion, the ONSC posed the following four questions as the basis for determining whether or not the tort of harassment had been made out: • Was the conduct of the managers toward [the employee] outrageous? • Did the managers intend to cause emo- tional stress or did they have a reckless dis- regard for causing [the employee] to suffer from emotional stress? • Did [the employee] suffer from severe or extreme emotional distress? • Was the outrageous conduct of the man- agers the actual and proximate cause of the emotional distress? Court of Appeal decision e ONCA allowed the employer's appeal and found that the trial judge had erred in recognizing a new common law tort of ha- rassment. e court determined that there was no basis upon which it could establish a new tort of harassment — either in existing Canadian legal authority, foreign judicial authority or academic authority. In acknowledging that this case was the first case in which the court had to consider the question of whether there is a tort of harassment, the ONCA expressed concern about efforts to change the law through the courts rather than the legislature. e ONCA stressed that changes in the com- mon law and/or the recognition of new torts, such as the tort of intrusion upon se- clusion established in its 2012 decision of Jones v. Tsige, must be made incrementally. e ONCA also distinguished this case from Jones, writing that this was not a case that "cr[ied] out for the creation of a novel legal remedy" and the tort of intentional in- fliction of mental suffering could be used as a potential remedy. However, despite the sug- gestion that the tort of intentional infliction of mental suffering could apply to cases such as these, the ONCA ultimately held that the trial judge erred in ruling that the employee had satisfied the criteria for intentional inflic- tion of mental suffering, nor would he have satisfied the test for the tort of harassment as laid out by the trial judge, since he did not demonstrate a causal connection between the alleged harm and the employer's conduct. Takeaways for employers Despite the ONCA's findings here concern- ing the existence of a common law tort of ha- rassment, employers do have an obligation to provide their workers with a harassment-free workplace under both human rights and occupational health and safety legislation. While the employee in this case was ultim- ately unsuccessful at appeal, the question of whether a tort of harassment should be es- tablished wasn't necessarily settled for good. However, on Sept. 19, 2019, the SCC denied the employee's appeal of the ONCA's verdict. Regardless of the finality of the SCC's decision to refuse the employee's appeal, employers should take harassment alleg- ations seriously and seek to address them promptly and appropriately. Even without a common law tort of harassment, em- ployers can face serious legal liability from workplace harassment. For more information see: • Merrifield v. Canada (Attorney General), 2019 ONCA 205 (Ont. C.A.). • Jones v. Tsige, 2012 ONCA 32 (Ont. C.A.). Please note this article is for information purposes only and is not intended to consti- tute legal advice. The Ontario Court of Appeal expressed concern about efforts to change the law through the courts rather than the legislature. « from SEPARATE on page 1 Concerns about changing law through the courts « from ASK AN EXPERT on page 2 Integration with employer's business a factor CREDIT: ELIJAH LOVKOFF/Shutterstock

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